Supreme Court Strikes Down Key Provisions of Arizona's Law

On June 25, 2012, the U.S. Supreme Court struck down three key provisions of Arizona's controversial immigration law.  Specifically, the Supreme Court struck down provisions that: (1) made failing to comply with federal alien registration requirements a state misdemeanor; (2) made it a state misdemeanor in Arizona for an alien without work authorization to seek employment; and (3) authorized state and local police to arrest a person when there was probable cause that the person has committed a public offense that made the person removable.  The Court upheld one provision, which required state and local police to verify a person's immigration status when stopped, detained or arrested.

The Supreme Court's ruling was based on the Supremacy Clause of the US Constitution, which provides that the US Constitution and the laws of Congress in pursuance thereof are the supreme law of the land.  Article I of the Constitution specifically gives Congress the power to regulate immigration.  Because the US Government has a comprehensive scheme for enforcing US immigration laws, the states cannot adopt their own immigration enforcement laws.

To put it in simple terms, the US Government has its own priorities in how it expends its resources in enforcing immigration law.  It's priorities include violent criminals, drug trafficking and repeat offenders.  State Governments cannot trump those priorities by making it a state crime to fail to comply with US immigration law.

On this point, I think it is important to note that being present in the United States without immigration status may be a violation of civil immigration law.  However, it is not a criminal violation.  The Supreme Court essentially said that the states cannot make it a criminal violation.  That is the Federal Government's job.

Indeed, state action to criminalize illegal presence, illegal work, and failing to register with the Federal Government may actually conflict with Federal policies.  Specifically, it would conflict with the policies recently announced by the Obama Administration concerning young people who were brought to this country at an early age.  It would also conflict with Federal law, which essentially forgives illegal work when a person who is out of status is married to a US citizen, and applies to adjust to permanent residency.

All in all, the Supreme Court's decision appears to have gotten the law correct.  A copy of the decision can be found at http://www.supremecourt.gov/opinions/11pdf/11-182.pdf.

Applying for Deferred Action Under the President’s New Policy

On June 15, 2012, President Obama and Homeland Security Secretary Napolitano announced a new policy to permit certain undocumented young people to remain in the United States and apply for work authorization.  No specific procedures have been adopted yet.  However, if you qualify, there are certain things you can do to prepare.

Do I Qualify?

To qualify, you must meet five criteria:

(1) Been brought to the United States while under the age of 16;

(2) Have continuously resided in the United States since June 15, 2007 or before;

(3) Currently be in school, have graduated from a high school, have earned a general equivalency diploma, or be honorably discharged from the Armed Forces or Coast Guard of the United States;

(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does otherwise poses a threat to national security or public safety; and

(5) Is 30 or younger.

What Benefits Can I Get?

Postponement of removal (deportation)

Employment authorization

Can I Become a US Citizen?

No.  This policy does not lead either to permanent residency or citizenship.  It is only temporary protection from being removed (deported) from the United States.

How Do I Apply?

Since I first published this blog entry, new procedures were adopted.  See my later blog entries for a discussion on the procedures.

I am in Removal (Deportation) Proceedings Now.  What Do I Do?

As long as you are not in detention, you can still apply.

I am Not in Removal (Deportation) Proceedings, But I Think I Qualify.  What Should I Do?

If you are not in removal or deportation proceedings, applications should be made to the U.S. Citizenship and Immigration Service (“USCIS”).  There is already a process for applying for deferred action in general.  That is to apply to the District Director of the USCIS District where you live.  You should put together a letter explaining why you qualify for deferred action, and include supporting documentation.  It is expected that USCIS will adopt similar proceedings for this particular policy.

How Long Will the Benefit Last

Under this policy, you can receive deferred action and work authorization for two years.  Then, you can apply for an extension every two years after that.

Note, however, that this is an exercise of discretion of the Obama Administration.  There is no guarantee that this policy will continue.  Plus, it is an election year.  If a new president is elected, there is no guarantee that he will continue with this policy.

New Policy Promises to Help Young Undocumented Aliens

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, issued instructions to US Customs and Border Patrol (“CBP”), US Citizenship and Immigration Services (“USCIS”) and US Immigration and Customs Enforcement (“ICE”), concerning the exercise of prosecutorial discretion and the granting of deferred action in case involving undocumented aliens who came to the United States before the age of sixteen. Through these instructions, Napolitano aimed to implement a new policy of focusing enforcement resources on high priority cases, and not on lower priority cases of law abiding young people who have been brought to the United States. The text of Napolitano's memorandum can be found here. To qualify for the exercise of prosecutorial discretion under the new policy, an alien has to meet the following criteria: (1) the alien came to the United States before the age of sixteen; (2) the alien continuously resided in the United States for five years before June 16, 2012; (3) the alien is currently in school, has earned a high school diploma, has earned a general equivalency diploma, or was honorably discharged from the Coast Guard or Armed Forces of the United States; (4) the alien has not been convicted of a felony, a significant misdemeanor offense or multiple misdemeanor offenses, or is not a threat to national security or public safety, and (5) is thirty years of age or less. If CBP, USCIS or ICE encounter such a person, Napolitano instructed that the agencies should exercise their discretion, on a case by case basis, not to place that person in removal proceedings. Indeed, the agencies were instructed to develop a process for granting deferred action to such persons who are at least fifteen years old for two years. Deferred action occurs when the immigration authorities choose not to place a person in removal proceedings, despite the violation of immigration law. A person who has been granted deferred action may apply for work authorization in the United States. After the two years, the deferred action would be subject to renewal. If the person is already in removal proceedings, Napolitano instructed that ICE should determine whether to exercise its prosecutorial discretion, on a case by case basis, to terminate the removal proceedings, and grant the person deferred action for two years, subject to renewal. Pursuant to the Immigration and Nationality Act, US immigration authorities already possess the discretion to decide whether to place a person in violation of US immigration laws in removal proceedings, or whether to grant deferred action to such a person. Last year, the President instructed ICE to concentrate its resources on high priority cases, which would include violent criminals and threats to US national security and public safety. President Obama instructed ICE to consider, on a case by case basis, whether ICE should exercise its prosecutorial discretion in low priority cases not to continue with removal proceedings. Napolitano’s instructions represented more specific guidelines in how immigration authorities should exercise its discretion under the law. This specific policy is aimed to help a small class of undocumented individuals. Namely, it is meant to assist those who were brought to this country before the age of sixteen, and thus did not possess the intent to violate immigration law themselves. While this announcement of official Homeland Security policy is focused on a narrow class of people, it does not mean that some form of relief will not be made available to other undocumented aliens. Immigration authorities still possess the discretion under the law not to pursue removal proceedings for people who are technically in violation of immigration law. Indeed, immigration authorities have the discretion to grant deferred action and consider whether to grant a person otherwise in technical violation of immigration law work authorization. ICE has already been instructed to concentrate its resources on high priority cases. Those cases include aliens who: (1) have engaged in, or are suspected to have engaged in, terrorism and/or espionage; (2) have been convicted of violent crimes, or are repeat offenders; (3) have participated in organized criminal gangs; (4) have outstanding criminal warrants; and/or (5) otherwise pose a serious risk to the public safety. An undocumented alien who does not fall into one of these categories may still petition immigration authorities to exercise prosecutorial discretion, and potentially granted deferred action. The new policy does not create a path to permanent residency or citizenship. Indeed, it would only grant a weak form of relief, and that is a promise not to enforce US immigration law. Deferred action can be revoked at any time, for any reason. The instructions created no constitutional right to the exercise of prosecutorial discretion or deferred action. A person granted deferred action can still be removed (or deported) from the United States should the Administration change its policy, or a new Administration disagree with this policy. The new policy does not grant amnesty. That is, it does not forgive the violation of immigration law. It only gives an undocumented alien a promise that for a limited period of time the US Government will not enforce immigration law requirements on an individual. If you believe that you may meet the criteria set forth in Napolitano’s instructions, you should consult with a knowledgeable immigration lawyer to discuss your options.

Why Consult a Lawyer?

Immigration law is form-driven. And since you are answering questions about yourself, it may appear deceptively simple. But, even for an apparently simple case, it is a good idea to consult with a lawyer first. Recent example - as I was sitting waiting with my clients for their interview, I couldn't help overhear a USCIS Officer speak to a woman who applied for citizenship. She just passed her English and Civics tests, but the adjudicator was trying to explain to her that since her parents became citizens when she was under 18, she already was a citizen. Now, she needed to file another form, pay another filing fee, and get a passport. While this was generally good news, it meant that she spent $680 on a filing fee, and attended an interview that was completely unnecessary. If she had consulted with a knowledgeable immigration lawyer before filing the application, she could have saved herself time and money.

Admitted to the Eastern District of Virginia

Now admitted to practice in the U.S. District Court for the Eastern District of Virginia. Do you have a delayed immigration petition? A citizenship application that has been pending for years? I can help you file a suit in the Eastern District to try to force the Government to make a decision on your case.